Manorama Kumari, Member - (1.) The instant Company Petition is filed by the petitioners, involving various provisions of the Companies Act, 1956, alleging certain acts of oppression and mismanagement on the part of Respondents which is prejudicial to the interest of the petitioners. Therefore, the petitioners sought for reliefs by making various prayers in the petition. The petitioner submitted that he was the founder Director of the said Company, Tirupati Investments & Trade Limited which was incorporated in the year 1975 and the petitioner No. 1, at all material time, was the founder director along with Mr. AK Choudhury and Mr. Nagurmall Kanoria. Subsequently, the constitution of the Board of Directors of the said Company were changed from time to time and finally the petitioner No. 1 and 2 and the respondent No. 2 at all material times, became the Directors of the said Company. It is pertinent to mention herein that the Petitioner No. 2 and Respondent No. 2 are the daughter and son of the petitioner No. 1. The Company, at all material times, is closely held a family Company, the shares are divided amongst the members by the petitioner. In course of time, the said Company has also acquired diverse immovable properties, the particulars of which are already given in the pleadings. During the inception of the company, as the respondent No. 2 was only 14 years of age, as such, after his completion of study, the petitioner No. 1 brought the respondent No. 2 in the business. The shares are allotted at the instance of the petitioner No. 1 without receiving any consideration whatsoever, out of love and affection, with the intention that business of the company is being run by the family members and will be restricted among the family members only. The petitioner(s) also annexed the documents in support of his/their contention. The authorised share capital of the company is Rs. 30,86,500/- divided into 3,08,650 number of equity shares of Rs. 10/- each. From the close look, it is clear that the Company is a family Company closely knitted between the father, mother, son, daughter and daughter-in-law. The pro forma respondent Nos. 7 and 8 are the daughters of the petitioner No. 2 and since they are supporting the petitioner's cause in the proceeding, as such the petitioner has no claim against them. The Banker is also made party as a pro forma respondent No. 9 as all the transactions in the said Company are being taken place through the said Bank, though no relief is claimed from the said Bank. Altogether, the petitioners hold 36.37% of the total issued, subscribed and paid up capital of the said Company and by reason of this, the petitioners altogether hold more than 10% of the total issued, subscribed and paid up share capital of and in the Company and thus they have requisite share qualification to file the petition under Section 399 of the Companies Act, 1956 (enclosed copy of annual return of the company for the year 2011 - 2012). Prior to October, 2013, the petitioner No. 1, 2 were the Directors of the Board of the said Company along with respondent No. 2, being the son of petitioner No. 1. The petitioner submitted that sometime in the month of March, 2013, the respondent No. 2 started pressurizing respondent No. 3 (mother of petitioner No. 2 and wife of petitioner No. 1) to convince the petitioners 1 and 2 to transfer their shareholdings in favour of Respondent No. 2 so that he can take control and affairs of the Company. As the petitioner No. 1 and 2 declined to accede to this unreasonable demand of Respondent No. 2 and after such refusal, the respondent No. 2 started putting diverse mischiefs as against the petitioner No. 1 and 2 and sought to have created resistance in carrying out the day to day affairs and business of the said Company. Not only this, in March 2013, the respondent No. 2 also resorted to assault on his own sister i.e. the petitioner No. 2 since she has refused to accede to the illegal demand of the Respondent No. 2. Finding no other alternative, the petitioner No. 2 lodged Police complaint with Alipore Police Station on 13-03-2013 being case diary GD No. 1397/2013 with the concerned Police Station. The Advocate on behalf of the petitioner(s) submitted that in and around 2014, they came to know and discovered from the letter dated 18-01-2014 purported to have been issued by the said Company under the signature of Response No. 2 that the petitioner No. 2 has been removed from the Board of Directors of the Company and the petitioner No. 1 has also been removed by convening illegal EOGM. The petitioners contended that such removal from the Board of Directors of the said Company are wholly illegal and wrongful. Also, the purported induction of Respondent Nos. 3 to 5 in the Board of Directors of the said Company are also illegal and wrongful and was made behind the back of the petitioners to grab the total control in the company (Annexure 'C page 101 of the petition). After receiving the letter dated 8-01-2014, the petitioner made necessary enquiry and came to learn that the said Company has also illegally and wrongfully uploaded the Form 32 with MCA Portal of the Registrar of the Company showing the said purported removal of the petitioners No. 1 and 2 from the Company and purported induction/appointment of the Respondents 3 to 5. The said MCA portal of the ROC is annexed with the petition and marked as letter "D" (Page-102 of the petition). The petitioner, on coming to know about the illegal acts of the respondent No. 2, wrote letter to the respondent No. 2, on 10-01-2014 and raised objection as against the said illegal and wrongful removal of the petitioners from the Board of Directors of the Company as well as against the illegal induction of Respondents 3 to 5 in the Board of the Company (Annexure "P" page 206 of the petition). But the fact is confirmed by the respondent vide his letter dated 18-01-2014 and it is clear and evident that the petitioner No. 1 was removed by convening purported and illegal EOGM and the petitioner No. 2 also was removed by purported Board meeting from the company with effect from 21-05-2013. The copy of the said letter was also annexed and marked with letter "Q"- Page 208 of the petition. It is pertinent to note herein that no previous notice as required under the law, is issued to the petitioner(s) before removing either the petitioner No. 1 or the petitioner No. 2. It is also pertinent to mention herein that the respondent No. 2, on filing of the criminal complaint under Section 144 of the Criminal Procedure Code before the Ld. Executive Judge, bearing case No. MP507/2013 by the respondent(s) as against the petitioner No. 2, the respondent No. 2 obtained an order dated 18-03-2013 from the Executive Judge, whereby the petitioner No. 2 was restrained to have any access to the said premises No. 8/2/C, Alipore Park, Kolkata - 700 027 as pleaded in the petition. It is clearly evident that the respondent No. 2, on the one hand obtained one order against the petitioner No. 2 so that the petitioner No. 2 did not have the access to the said premises, being premises No. 8/2/C, Alipore Park, Kolkata - 700 027 and on the other hand, held the Board meeting and the EOGM without affording any opportunity to her to represent in the said meeting as shareholder of the said Company when prohibitory order is/was under operation. On receiving the copy of the Company petition, the respondent(s) has given a reply rebutting all the allegations of the petitioner. However, on the date of hearing, none appeared from the side of the Respondent(s) to conduct he final hearing. Hence, the petition was heard ex parte. On perusal of the reply filed by the respondent and the documents annexed therein, it is found that the respondent(s) have annexed various notices of the different Board meetings as well as notice of the Extraordinary General Meeting purportedly issued in the name of the petitioner(s) from 12-04-2013 onwards reflecting different dates of meetings. On perusal of the record and the pleadings as well as the reply filed by the respondent, I found that the main allegation in the Company Petition is removal of the Directors (Petitioners) on the ground of failure to attend three consecutive meetings by the petitioner No. 2 and by way of convening the EOGM, the petitioner No. 1 was removed and induction of additional Directors, i.e. the Respondent No. 3 to respondent No. 5 in the company. On hearing the submissions of the petitioner's Counsel, ex parte and also on perusal of the reply filed by the respondent(s), the basic point of consideration in the Company petition are as follows: i) Whether the service of notices of the Board meetings and the EOGM is valid or not; ii) Whether the removal of the petitioner Nos. 1 and 2 as Directors of the Company are valid or illegal? iii) Whether the appointment of respondent Nos. 3 to 5 as additional Directors of the Company is invalid/illegal? iv) Whether the petitioner No. 2 remained absent in the meeting for three consecutive meetings and ceased to continue as Director as stated by the respondent(s). On perusal of the record and the photo copies of the documents submitted by the respondent(s) along with reply and during the course of argument, the Ld. Advocate of the petitioner drawn my attention to the documents/notices filed with the reply of the Respondent(s), it is found that the Respondent No. 2, as a Director of the Respondent No. 1, Company, issued notice to Shyam Saran Gupta, (Petitioner No. 1); Rajnandini Pachisia (petitioner No. 2), for self (as Respondent No. 2) and to Smt. Mridula Gupta (to be appointed as Additional Director) by way of hand delivery, all notices are issued on 2-4-2013, reflecting the date of meeting as on 11-04-2013 to be held at 4, India Exchange Place, Kolkata at 3 p.m. to consider the following agenda i.e. a) To grant leave of absence b) To confirm the minutes of the last meeting of the Board of Directors c) Appoint Mrs. Mridula Gupta as additional Director of the Company and d) To discuss and consider any other matter with the permission of the Chair. Very surprisingly, all the notices are shown to have been received by one Shri S Jha on behalf of the Respondent No. 2 and 3 as well as for the Petitioner No. 1 and for petitioner No. 2, by one Shri Tarun Haider, shown to have received (page No. 158 to 161 of reply of the respondent(s), as drawn attention by the Ld. Lawyer of the petitioner. One undated photo copy, (certified to be true copy) is annexed with reply showing the resolution passed at the meeting of the Board of Directors of the Company, Tirupati Investments & Traders Ltd. held on 11-04-2013 at its registered Office at 4, India Exchange Place, 2nd floor, Kolkata-700 001, whereby it resolved that: a) Mrs. Mridula Gupta be and is hereby appointed as an additional Director of the Company; b) Mr. Devvrat Gupta, Respondent No. 2, Director of the Company be and is hereby authorised to digitally sign and file e-Form 32 with Registrar of Companies, West Bengal; On perusal of the minutes of the meeting, it is found that Shri Shyam Saran Gupta, (petitioner No. 1) Shri Devvrat Gupta (Respondent No. 2) and Mrs. Mridula Gupta (respondent No. 3) were shown to be present by invitation, whereas the petitioner No. 2, Rajajnandini Pachasia was shown to be absent in the meeting. But nowhere it is reflected in the resolution dated 11-04-2013 as to how many meetings the petitioner No. 2 remained absent.
(2.) Again, on 12-04-2013, similar notices are issued by the Respondent No. 2 as Director of Respondent No. 1, Shyam Saran Gupta, (petitioner No. 1) for self as Respondent No. 2, Mrs. Mridula Gupta (Respondent No. 3), Ms. Priyanka Gupta(Respondent No. 4), (wife of Respondent No. 2) and Miss Kashmira Gupta, (Respondent No. 5), (daughter of respondent No. 2) reflecting the date of Board meeting as 20-04-2013 but no notice for meeting dated 20-04-2013 was issued to the Petitioner No. 2 instead, notice for Board meeting for 24-04-2013 is/was issued (page 178 of the reply) : a) To grant leave of absence; b) To confirm the minutes of the last board meeting; c) To appoint Mrs. Priyanka Gupta and Miss Kashmira Gupta as additional directors of the Company; d) To discuss and consider any other matter with permission of the chair. The most surprising part is that, this time also the notices are/were sent by hand delivery and shown to have received by one Shri S Jha for all and for Rajnandini Pachisia (petitioner No. 2) one Tarun Haider shown to have received the notice for the Board meeting of 24-04-2013 (page No. 173 to 178 of reply by respondent). One photostat copy of the minutes of meeting of the Board of Directors held on 20-04-2013 is also annexed showing the presence of Smt. Mridula Gupta, (Respondent No. 3), Devvrat Gupta, (Respondent No. 2), Priyanka Gupta, (Respondent No. 4) and Kashmira Gupta, (Respondent No. 5), wherein Ms. Rajnandini Pachasia, petitioner No. 2 was shown as 'absent' in the meeting and with regard to petitioner No. 1, Shyam Saran Gupta, it is reflected as "leave of absence" is granted to Shyam Saran Gupta. Thus, it is clear that the document relied upon by the respondent, itself shows that no notice of the Board meeting dated 20-04-2013 was ever issued to the petitioner No. 2. Minutes of meeting reflects appointment of the respondent No. 4 and Respondent No. 5. Accordingly, after the holding of the meeting, Form 32 is also uploaded with ROC by the respondent reflecting Mridula Gupta, Priyanka Gupta and Kashmira Gupta (Respondent Nos. 3 to 5) as the additional Directors and the petitioner No. 2, Rajnandini Pachasia as ceased to be the director of the company in Form 32 (page No. 181 of the reply.
(3.) On perusal of the reply filed by the respondent as also the attention drawn by the Advocate of the petitioner(s), it is found that similar notices are/were issued again on 10-05-2013 by the respondent No. 2 to Shyam Saran Gupta, (petitioner No. 1), Rajnandini Pachisia, (petitioner No. 2), Smt. Mridula Gupta, (Respondent No. 3), Ms. Priyanka Gupta, (respondent No. 4), Miss Kashmira Gupta (Respondent No. 5) and to self, (as Respondent No. 2), wherein the date of Board meeting is/was reflected as 21-05-2013 to be held at the same place as stated earlier at 1.00 p.m. with following agenda: a) To grant leave of absent; b) To confirm the minutes of the last Board meeting; c) Cessation of Office of Director by Smt. Rajnandini Pachisia; d) To discuss and consider any other matter with the permission of the chair. This time also similar fashion was adopted to send notices as said above and the same person i.e., S Jha and Tarun Haldar) are/were shown to have received the notices on behalf of Respondents as well as on behalf of the petitioners. On bare perusal of the notices, it gives an impression that all the notices are manufactured and are/were issued and received by one and the same person and in the similar fashion on all occasions. The minutes of meeting dated 21-05-2013, reflects that Smt. Mridula Gupta, (Respondent No. 3), Shri Devvrat Gupta, (Respondent No. 2), Ms. Priyanka Gupta, (Respondent No. 4) and Ms. Kashmira Gupta, (Respondent No. 5), were present and leave was granted to Shri Shyam Saran Gupta, petitioner No. 1. In the said meeting the Chairman informed that Smt. Rajnandini Pachasia, Director of the Company is not attending the meetings of the Board of the Directors since 16th August, 2012 and she has also not obtained 'leave of absence' from the Board of Directors and in accordance with Section 183(1)(g) of Companies Act, 1956. She has been ceased to be the Director of the Company and thereby the respondent unilaterally resolved that the cessation of the Office of Director of Smt. Rajnandini Pachasia under Section 283(1)(g) of the Companies Act, 1956 with effect from 21-05-2013.;